The Right to Information Cannot Be Suppressed Even In Extreme and Harsh Conditions

The changes brought through the Right to Information (Amendment) Act of 2019 have dealt a blow to the independence of Information Commissions in the country. This comes in the backdrop of vacancies and pendency that have slowed down and affected the efficient working of the commissions, writes Shrikrishna Kachave.

OCTOBER 12, 2020 marks the completion of 15 years of the Right to Information (RTI) Act which has brought radical changes in the governance of the country.

Right to Information is a fundamental right that emerged out of Article 19(1)(a) i.e. right to freedom of speech and expression. It is undoubtedly a powerful tool that bears the responsibility of unearthing scams worth multi-millions and is even helpful in bringing illegalities to light.

In the last few years, there have been many attempts at debilitating the Act by the Central government. It sought to amend some of its very important provisions to thereby coerce the Information Commissioners (IC) to be at the mercy of the legislature.

In 2019, the amendments in RTI Act, 2005 usurped the control of Information Commissioners thereby demeaning the powers bestowed to them under their statutory status.

However, besides this, what are the other reasons that have led to the turmoil of this powerful RTI Act today? Here are some of them:

Pendency in Hearing Second Appeals and Complaints

There are more than 50,000 second appeals pending with the Maharashtra State Information Commission, which itself reflects the worsening situation of RTI in India.

One solution is that the Information Commissions can initiate hearing appeals by using audio-video technology with the application of optimal resources and thereby save time. Although lately, this was started by some Commissions, its implementation has to be maximised widely.

In 2019, the amendments in RTI Act, 2005 usurped the control of Information Commissioners thereby demeaning the powers bestowed to them under their statutory status.

Government Control over Commissioners

The superfluous amendments to Sections 13 and 16 in the RTI Act, 2005 affected the salaries, terms, and tenures of the Information Commissioners in Central and State governments respectively. Through these amendments, the Central or State Government will have control over the Central and State Information Commissioners, as the service conditions of the latter would now be subjected to the enjoyment of the government in power.

This has obviously struck a detrimental blow to the independent authority of Information Commissioners and caused irreparable damage to the objective of the RTI Act.

Constitution of Information Commissioners in Central and State Information Commissions

Sections 12(5) and 15(5) of RTI Act deals with the constitution of Information Commissioners which prescribes them to be a person of eminence in fields of public life with wide knowledge and experience in law, science, and technology, social service, management, journalism, mass media or administration and governance.

Preference should nevertheless be given to candidates from other fields of eminence rather than endowing an essence of post-retirement opportunities to civil servants.

However, reportedly  90% of Information Commissioners have been civil servants.  This simply implies a sense of prejudice in the selection process of Information Commissioners. It thus raises many doubts in the minds of the appellants who are awaiting their hearing of appeals to be decided in a fair and reasonably justifiable manner without any biases.

Preference should nevertheless be given to candidates from other fields of eminence rather than endowing an essence of post-retirement opportunities to civil servants.  If not, then it is but obvious that the Information Commissioners will probably be more inclined towards the political leaders who have helped in his appointment rather than delivering justice.
Non-adherence to Section 4 (1)(b) by Public Authorities

Implementation of adherence to Section 4(1)(b) will ease the burden for applicants and even for public authorities. The RTI applications seeking repeated and similar queries will drastically decline to a good extent.

Collation and publication of information can be the best solution to reduce their burden of work which the Public Information Officers (PIOs) are often protesting about.

Some of the exemplary work of such nature is done by the Pune Municipal Corporation (PMC) which has introduced the concept of Open Day to be organised every Monday between 3 pm. to 5 pm wherein one can visit them and inspect any record.

Another remarkable work is in progress is by the Rajasthan Government which has developed a ‘Jan Soochna Portal’ and displayed in the public domain almost all information relating to its schemes and policies to promote transparency and accountability.

Non-appointment/Delayed appointment of Information Commissioners.

The tenure of an Information Commissioner is fixed and their termination can be predicted well in advance. Nonetheless, it is a big lacuna that the Information Commissioners are not appointed on a timely basis. This eventually results in huge pendency of appeals and complaints.

The tenure of an Information Commissioner is fixed and their termination can be predicted well in advance. Nonetheless, it is a big lacuna that the Information Commissioners are not appointed on a timely basis. This eventually results in huge pendency of appeals and complaints.

The non-appointment of the Chief Information Commissioner in the Central Information Commission of India has itself caused a huge impact.

Such lethargy is enough to reveal the gravity of the NDA government which came to power, blatantly and falsely assuring the people of good governance and transparency in its agenda of 2019 general elections.

A survey conducted by the Commonwealth Human Rights Initiative of the initial phases of lockdown amidst the COVID-19 pandemic found that though the CIC had resumed hearings in April, the performance of the State Information Commissions (SICs) was in utter dismay.

The SICs in fact evidently failed to realise that the lockdown was an opportunity for them to discharge their duties and responsibilities in an efficient manner. The times highlighted the importance of transparency since public administration was compelled to function in a restricted manner owing to physical limitations.

The Right of Freedom to Speech and Expression, which includes right to know, is a right that can’t be suppressed even in extreme and harsh conditions.

As they say: “Not only must Justice be done; it must also be seen to be done”.

To reflect this in action, the government must whip its political willpower with the same vigor that it displays while initiating action against citizens dissenting in the world’s largest democracy.

The article was originally published in The Leaflet.

(Shrikrishna Kachave is an advocate practicing in trial court and tribunals of Pune. Views are personal.)